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1893. If it be considered in the light of the | poration when it is insolvent or its insolvency decisions of the Supreme Court of the Unit- is imminent, with the intent of giving a prefered States, commencing with Clark v. Baze-ence to any particular creditor over other creditors, shall be valid, except that laborers' wages done (1803) 1 Cranch, 212, 2 L. Ed. 85, which for services shall be preferred claims, where a decided that, under the Constitution of the creditor of a corporation received all of its United States (after which ours was model- assets in payment of a debt, although the cored), it was for the legislative department of large amount which it was unable to pay, the poration was indebted to other creditors in a the government to determine what courts facts unexplained showed an intent to give such shall be given jurisdiction to finally deter- creditor a preference as matter of law notmine appealable cases, and ever since ad-ize the corporation, and provide in the reorwithstanding such creditor's intent to reorganhered to by that court, for 110 years, the act ganization for the payment of all creditors in must be held valid. full; the reorganization and payment of other creditors not having in fact taken place. tions, Cent. Dig. 88 2162-2169; Dec. Dig. § [Ed. Note.-For other cases, see Corpora544.*]

If it be considered in the light of decisions of courts of other states with similar constitutional provisions (which most of them have), the same result is reached. Most of these states have been confronted with the same problem that Indiana has met-the physical impossibility of disposing of all appealable cases by one court-and they have solved the problem by creating tribunals similar to our Appellate Court, and such legislative action has always been upheld as constitutional. People v. Richmond (1891) 16 Colo. 274, 26 Pac. 929, and cases cited; Sharpe v. Robertson, 46 Va. 518.

It is presumed that Legislatures, in enacting laws, and the people in adopting Constitutions, do not contemplate absurdity as a consequence of their actions, and therefore in construing Constitutions, or statutes, a construction involving absurd consequences should be avoided. Is not the consequence absurd here, when we know that the very object of creating a judicial department of the government was to secure a speedy administration of approximate justice; that more than 32 years ago the people discovered that one court was no longer able to dispose of appeals, and removed the constitutional impediment by the most important amendment made to our Constitution since 1851; that the purpose of the amendment was to permit just such a court as was created in 1891; that the validity of the creation of such court has stood a practical construction of 32 years, and a judicial one for the same length of time?

In my judgment the act of 1913 is a valid enactment, and should not be overthrown by any mere technical definitions of words found in the Constitution, when it is perfectly apparent what was intended by the people in adopting and amending it.

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Appeal from Supreme Court, Appellate Division, First Department.

Action brought pursuant to section 66 of the Stock Corporation Law by Gilbert H. Montague, as receiver of the Hotel Gotham Company, against the Hotel Gotham Company and another. Judgment for defendants was affirmed by the Appellate Division, First Department (149 App. Div. 942, 133 N. Y. Supp. 1133), and plaintiff appeals. Reversed, and judgment directed for plaintiff.

See, also, 150 App. Div. 902, 134 N. Y. Supp. 1139.

Alfred A. Wheat, of New York City, for Alexander S. Andrews, of New appellant. York City, for respondents.

CHASE, J. The Hotel Gotham Company was dispossessed from the hotel occupied by it as a tenant on May 9, 1908, and thereafter had no interest therein. On the same day the Fifty-Fifth Street Company took possession of the furniture and equipment of said hotel pursuant to the terms of a chattel mortgage owned by it thereon. It subsequently appeared that said furniture and equipment taken under said chattel mortgage was not worth as much as the claim against the hotel company for which it was held as collateral.

It further appeared that the Fifty-Fifth Street Company as a creditor of the hotel company received on May 9, 1908, from said hotel company $2,173.37 and certain personal property, consisting principally of perishable hotel supplies, and on or about May 31, 1908, $7,762.07, which items of cash constituted the only remaining assets of said hotel company. The hotel company at that time was indebted to other creditors in an amount exceeding $30,000, which it was and is wholly unable to pay.

These facts, which are not disputed or explained, except as hereinafter stated, require us to hold as a matter of law that such pay. ments were made with intent of giving a preference to the Fifty-Fifth Street Company over other creditors of the hotel company.

The officers of the Fifty-Fifth Street Company undoubtedly intended at that time to reorganize or have reorganized the hotel company and provide in such reorganization

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

tion for the jury as to the negligence of the to be turned on or in doing an act which, in superintendent, either in directing the current the exercise of reasonable care, he ought to have known might be misunderstood, but showed that the accident was due to the negligence of a fellow servant, for which the employer

for the payment of its remaining creditors in [ evidence of these facts did not present a quesfull. Such intent did not, however, prevent the facts found from constituting as a matter of law an intent by the hotel company to give the Fifty-Fifth Street Company a preference. The fact that the hotel company was not reorganized, and the further fact that the creditors of the hotel company were never paid, simply emphasize the preference that was given at the time when the FiftyFifth Street Company received all of the remaining assets of the hotel company.

The findings of the trial court sustain the conclusion that none of the other payments made by the hotel company to the FiftyFifth Street Company, mentioned in the complaint, was made with intent of giving a preference to the Fifty-Fifth Street Company over other creditors of the hotel com


It is also found in substance that said personal property, consisting principally of perishable hotel supplies, could not have been sold so as to produce any net sum for the creditors of the hotel company, and that the transfer thereof to the Fifty-Fifth Street Company for a credit by it of the book value thereof to the hotel company was not fraudulent or preferential under the circumstances narrated. We cannot say as a matter of law that such finding was an error. The judgment in favor of the defendants should be reversed, and judgment directed upon the findings in favor of the plaintiff and against the defendant Fifty-Fifth Street Company for $9,935.44, with interest on $2,173.37 thereof from May 9, 1908, and on $7,762.07 thereof from May 31, 1908, without costs in any court to either party.

CULLEN, C. J., and GRAY, WILLARD BARTLETT, CUDDEBACK, and HOGAN, JJ., concur. MILLER, J., not sitting.

Judgment accordingly.

(208 N. Y. 383)

was not liable.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 449-474; Dec. Dig. § 190.*]

Appeal from Supreme Court, Appellate Division, Third Department.

Action by Maude A. Luther, as administratrix, against the Standard Light, Heat & Power Company. A judgment on a verdict for plaintiff was affirmed by the Appellate Division, Third Department (151 App. Div. 904, 135 N. Y. Supp. 818), by a divided court, and defendant appeals. Reversed, and new trial granted.

Harvey D. Hinman, of Binghamton, for appellant. C. L. Andrus, of Stamford, and C. H. Seeley, of Sidney, for respondent.

WILLARD BARTLETT, J. This is a suit under Employer's Liability Act (chapter 36of the Laws of 1909 [Consol. Laws 1909, c. 31, §§ 200-204]), in which the plaintiff has recovered damages against the defendant corporation for having negligently caused the death of her husband while in its employ as a lineman on Sunday, the 27th day of June, 1909. The defendant's power plant is situated between Sidney, in Delaware county, and Unadilla, in Otsego county, and supplies electric light and power to those villages and also to the village of Bainbridge. the day of the accident which caused the death of plaintiff's intestate he was sent out as one of a number of men in the employ of the defendant to change the location of the wires on the Bainbridge line from old poles to new ones; and in order that this work might be done with safety the electric current was turned off from the Bainbridge line. This was done by the engineer in the power house pursuant to instructions from Mr. Ed


LUTHER v. STANDARD LIGHT, HEAT & win O. Allen, the superintendent of the plant,


(Court of Appeals of New York. May 13,



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who told the engineer that the men were about to work on the Bainbridge line. The engineer testified that there was a rule of the defendant to the effect that, when the current was turned off under such circumstances, it was never to be turned on until word had been received directly from the men working upon the line "that they were through and off the line."

An electric light company had a rule that, when the current was turned off while employés were at work on the wire, it should never be turned on until word was received directly from those working on the line that they were through and off the line. Its superintendent, living a short distance from its power house, heard the telephone gong at the power house, and called to an employé there to attend to it. The employé, who knew that other employés were working on the line, did not hear what the superintendent said, and asked, "They phone?" to which, as he claimed, the superintendent nodded his head. He then went to the telephone, but receiving no answer, turned on the current, killing an employé. Held, that Bainbridge," and he went to work cleaning

The work appears to have proceeded in safety until about half past 4 on Sunday afternoon. At this time one Homer Robinson, an employé of the defendant at the power house, went on duty there, looking after the dynamos, fires, and boilers. He was told by an assistant in the boiler room when he arrived "that the boys were working on the

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fires and wheeling coal. The residence of the
superintendent was situated 150 feet north of
the power house on the other side of the
highway. While Robinson was wheeling in
coal his attention was attracted by a call
from Mr. Allen, the superintendent, who was
standing upon the veranda of his house and
"had his arm above his head pointing to a
fixture." Robinson's testimony was taken by
commission, and does not disclose what was
the fixture thus mentioned, or what the sig-
nificance of Mr. Allen's gesture. He does not
undertake to state what Mr. Allen said, but
declares that he did not hear the words
which Mr. Allen used; although he evidently
understood them to have some reference to
the telephone in the power house, the bell of
which was ringing steadily at the time. He
testifies that he said to Mr. Allen, "They
phone?" to which Mr. Allen nodded his head.
Robinson thereupon went into the office, took
down the receiver, and said "hello," but no-
body answered. He stopped the ringing of
the telephone bell, went out, and moved the misunderstood by Robinson.
switch which turned the current on to the
Bainbridge line. The plaintiff's intestate was
then engaged in splicing one of the high
voltage wires that carried this current, and
he was instantly killed by the shock which he

difficult to imagine. If we amplify the evi-
dence in behalf of the plaintiff by Mr. Allen's
own statement as to the words which he
used, the case is no stronger; for it is im-
possible to conceive how any reasonable per-
son could have supposed that a direction to
attend to a telephone which was ringing in-
sistently could be tortured into an instruc-
tion to turn on a dangerous electric current
before being satisfied that the men were off
the Bainbridge line, or, indeed, to turn it on
at all. There is absolutely no evidence to
sustain the verdict in this case on the issue
which was submitted to the jury, to wit, the
question whether the superintendent did in
fact direct the turning on of the current.
Nor was there any evidence to sustain a
finding against the defendant upon the issue
first submitted but afterwards withdrawn
by the trial judge; that is to say, the ques-
tion whether the acts of the superintendent
were such as he ought, in the exercise of
reasonable care, to have believed might be
There was a

Notwithstanding his inability to hear the words used by Mr. Allen, Robinson testifies that he understood them to be a direction to turn on the current. He concedes that he did not hear the telephone bell ringing in the office until Mr. Allen called to him. It is proper to consider Mr. Allen's testimony as to what he actually said in view of Robinson's failure to distinguish the language used. Mr. Allen testifies that when he heard the telephone gong ringing he went out on to his porch and shouted to Robinson, "Homer, 'tend to your telephone." According to his testimony, all that Robinson did in response was to look up and start for the plant. After the accident was discovered, Robinson told Mr. Allen that he understood him to say to put on the Bainbridge current, but Mr. Allen declared that he did not know how Robinson came to say this, as he had said nothing to him about putting on the current.

In order to sustain a recovery by the plaintiff in this case under the Employer's Liability Act, it is necessary to show that the superintendent was negligent either in directing the current to be turned on or in doing some act which he could reasonably anticipate would be construed as such a direction. It does not seem to us that the evidence in this case viewed in the most favorable light for the plaintiff will support the inference that Mr. Allen was negligent in either respect. How a simple call to an employé in words which that employé was unable to distinguish at the time, and, of course, is unable now to recall can be held to amount to a direction to turn on an electric current, it is

complete failure of proof in either aspect of the case. Upon the evidence the accident appears to have been entirely due to the gross negligence of a fellow servant for which the law does not render the master liable.

The judgment should be reversed, and a new trial granted, with costs to abide the event.

CULLEN, C. J., and WERNER, CHASE, COLLIN, and HOGAN, JJ., concur. HISCOCK, J., concurs in result.

Judgment reversed, etc.

(208 N. Y. 389)

PEOPLE v. KAMINSKY. (Court of Appeals of New York. May 13, 1913.)




Under Penal Law (Consol. Laws 1909, c. 40) § 817, providing that, when it is necessary to determine the age of a child, the child must be produced for personal inspection to enable the court to determine the age, the Court of Special Sessions may, in the absence of any evidence on the subject, find from a personal would be a felony if committed by a person inspection that one charged with larceny, which over the age of 16 years, while a misdemeanor if committed by a child under 16, was under the age of 16, and within the jurisdiction of the


Law, Cent. Dig. §§ 1273-1275; Dec. Dig. § [Ed. Note.-For other cases, see Criminal 566.*]



A statute which reduces all crimes committed by children under 16 to the grade of misdemeanors, punishable as are other misdemeanors, and authorizing the prosecution of a child in the Court of Special Sessions, does not violate Const. art. 1, § 6, declaring that

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no person shall be held for an infamous crime. I ted by an adult. Penal Code, § 531; now except on indictment. Penal Law (Consol. Laws 1909, c. 40) § 1296. [Ed. Note. For other cases, see Indictment But section 699 of the same Code (now and Information, Cent. Dig. §§ 9-23; Dec. Dig. Penal Law, § 2186) provided that a felony § 3.*] not capital or punishable by imprisonment for life when committed by a child unThe right of trial by jury is limited by der 16 should be only a misdemeanor. Const. art. 6, § 23, providing that the Courts There was no oral evidence as to the defendof Special Sessions shall have such jurisdic- ant's age, but he was present in the court tion of offenses of the grade of misdemeanors as shall be prescribed by law, and a statute in person, and it was provided by section 19 which reduces all crimes committed by children of the Penal Code (Penal Law, § 817) that under 16 years to the grade of misdemeanors the court or jury might determine the age of within the jurisdiction of the Court of Special Sessions is not unconstitutional, as depriving a child by personal inspection. This is the juvenile offenders of the right of trial by jury. general rule prevailing in nearly all juris[Ed. Note.-For other cases, see Jury, Cent. dictions apart from any statutory provision Dig. §§ 145-151; Dec. Dig. § 22.*] on the subject. 1 Greenleaf's Evidence, § 4. CRIMINAL LAW (§ 989*)-SENTENCE-PRE-14 L; 1 Wigmore on Ev. § 222, and see cases LIMINARY REQUIREMENTS-STATUTORY PRO- there cited.

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The use of ambiguous provisions in the minutes of a judgment of the Court of Special Sessions is improper, and in stating the plea of accused there is no occasion for the use of any abbreviation, and the minutes should distinctly specify the offense of which accused was adjudged guilty.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 2518, 2521, 2523-2526, 25282, 2530, 2536-2543; Dec. Dig. § 995.*]

Appeal from Supreme Court, Appellate Division, First Department.

Frank Kaminsky was convicted of grand larceny in the second degree, and from a judgment of the Appellate Division (137 App. Div. 941, 122 N. Y. Supp. 687) affirming the conviction, he appeals. Affirmed.

Henry Hirschberg, of Newburgh, for appellant. Charles S. Whitman, Dist. Atty., of New York City (Robert S. Johnstone, of New York City, of counsel), for the People.

CULLEN, C. J. The defendant, a boy 11 years old,, was convicted in the Court of Special Sessions, Children's part, of having stolen a pocketbook from the person of one Sadie Klein, and sentenced to the House of Refuge. From an order of the Appellate Division, afirming such conviction, this appeal is taken.

[2] Second. It is next objected that the statute authorizing the prosecution of the defendant in the Special Sessions violated the constitutional provision (article 1, § 6) that no person shall be held to answer for a capital or otherwise infamous crime, except on the presentation or indictment of the grand jury. Whatever the original view of the subject may bave been, the present judgment is that within this and similar constitutional provisions the character of the offense is determined by the nature of the punishment rather than by its supposed moral turpitude. Ex parte Wilson, 114 U. S. 417, 5 Sup. Ct. 935, 29 L. Ed. 89; People ex rel. Cosgriff v. Craig, 195 N. Y. 190, 88 N. E. 38. Even were moral turpitude still the test, the legislation before us could not be condemned because plainly the immature age of the offender might well be considered to diminish the extent of its moral transgression. The statute reduces all crimes com

mitted by children under 16 to the grade of misdemeanors, and the punishment which the court has power to impose is only the same as that which may be inflicted for other misdemeanors.

[3] Third. Nor are such juvenile offenders deprived of the constitutional right of trial by jury, for that right is limited by section 23 of article 6 of the Constitution, which expressly provides that Courts of Special Sessions shall have such jurisdiction of offenses of the grade of misdemeanors as shall be prescribed by law. People ex rel. Comaford v. Dutcher, 83 N. Y. 240.

[4] Fourth. The failure to ask the defendant whether he had any legal cause to show why judgment should not be pronounced against him was not an error for which

Several objections are raised to the valid- judgment should be reversed. This requireity of this judgment.

[1] First. It is urged that there was no evidence before the court that the defendant was under the age of 16 years, a condition necessary to give the court jurisdiction of his offense which-the larceny being from the person-would have been a felony if commit

ment, found in section 480 of the Code of Criminal Procedure, existed at common law in the cases of felony, and the failure to comply with it is fatal to the judgment. Messner v. People, 45 N. Y. 1; People v. Faber, 199 N. Y. 256, 92 N. E. 674, 20 Ann. Cas. 879; People v. Nesce, 201 N. Y. 111, 94

N. E. 655. Section 480, however general in | trix of the estate of Edward M. Hogan, determs, should not be considered as extend- ceased, against the New York Central & ing the rule to misdemeanors, for by sec- Hudson River Railroad Company. From a tion 473 punishment for a misdemeanor can judgment of the Appellate Division (152 App. be imposed in the defendant's absence, and, Div. 936, 137 N. Y. Supp. 1123), affirming a of course, if absent, he could not be called judgment for plaintiff, defendant appeals. upon to state a cause why judgment should Reversed and remanded. not be pronounced against him.

[5] The appeal book in this case discloses a carelessness in keeping the minutes of the Court of Special Sessions which calls for comment, to the end that the justices of that tribunal may institute a reform in that respect. The affidavit of the complainant charged the defendant with the crime of grand larceny without specifying any degree of that crime. The minutes of the judgment appear in the appeal book as follows: "Pleads-N. G. on June 3rd. "Trial, June 3 and guilty. "Sentence, House of Refuge."

John F. Brennan, of Yonkers, for appellant. John H. Jackson, of New York City, for respondent.

HISCOCK, J. This action is brought by plaintiff under the Employer's Liability Law (Consol. Laws 1909, c. 31, §§ 200-204), so called, to recover damages for the alleged negligent killing by defendant of her husband and intestate. At the time of the accident, which happened on October 12, 1910, intestate was and for several months had been in the employ of defendant as a freight brakeman runSymbols of this ambiguous character are ning out of North White Plains in this state. not appropriate to the minutes of a court of At and before this date the defendant mainjustice dealing with personal liberty. In stat-tained at said place a station and three groups ing the plea there is no occasion for the of tracks which were known, respectively, as use of any abbreviation at all. Further- yards A, B, and C, we being concerned simmore, it is to be observed that the defendant ply with the latter two. The tracks in that appears to have been adjudged guilty of locality ran substantially north and south; grand larceny in the second degree. This the easterly one of the main tracks being the should have been distinctly specified in the north-bound track. As said track approached minutes of judgment. the station from the south a branch diverged

The judgment of conviction should be af- from it a short distance towards the east, firmed.


Judgment of conviction affirmed.

(208 N. Y. 445)

R. CO.

(Court of Appeals of New York. May 23,


In an action against a railroad company for the death of a brakeman run down by a train, evidence held to establish deceased's contributory negligence.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 987-996; Dec. Dig. 8 281.*].


While the master has the burden of establishing the contributory negligence of the servant, the jury cannot find deceased servant to have been free from contributory negligence on a mere conjectural possibility, not suggested by

thereby leading to the station house. After said branch had partially passed the station a branch track, in turn, diverged from it towards the east, and from this latter track several switch tracks led. These tracks numbering in the neighborhood of eight or ten constituted yard C, the most westerly ones thereof being known in this case as tracks Nos. 1 and 2, and on the former one of these two the accident happened.

Directly west of track No. 1 was a clear space of something more than 15 feet leading from a point in front of the station northerly through the entire distance involved in this case. Next westerly of this space was the north-bound main track of the defendant, and then next westerly of this the tracks constituting yard B.

During all of the time under consideration, defendant had operated by electricity a passenger train, which proceeding northward arrived at the station over the north-bound main track and branch track already mentioned at 8:31 in the evening. After discharging its passengers, this train was accustomed to run northerly into yard C where it was shifted, and then moved out again toward the south at 9:03. Defendant during the same period also operated a freight train which was made up each night in the yard B at a point about 800 feet northerly from Appeal from Supreme Court, Appellate the station and dispatched in a southerly diDivision, Second Department. rection at 9:15 and which was the train on

any evidence.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 877-908, 955; Dec. Dig. § 265.*]

Action by Frances Hogan, as administra- which intestate worked.

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